2007 PLP 1679 (YLR)

SYED SHABBAR RAZA RIZVI, J.

The present criminal revision arises from the F.I.R., No.57 of 2006, dated 20-1-2006, registered at Police Station Sukheki, District Hafizabad. The petitioner is accused in the said F.I.R. He moved an application on 12-4-2006, before the learned Sessions Judge, Hafizabad, praying therein that he was a minor at the time of occurrence. In his support, the petitioner relied upon school leaving certificate.

2. On the other hand, the complainant produced the birth certificate of the petitioner contending that the petitioner was more than 18 years old at the time of occurrence.

3. The learned Sessions Judge framed charge on 12-4-2006 and also directed vide his order dated 21-4-2006 to the .Superintendent of D.H.Q, Hospital, Hafizabad, to conduct the ossification test of the petitioner through a Medical Board consisting of five doctors. The medical report was submitted, however, the learned Sessions Judge decided against the petitioner declaring him major vide his order dated 9-6-2006.

4. The learned counsel for the petitioner contends that the impugned order is against the law. According to him, when there are two views, view supporting the accused, should be preferred. He also submits that report of a Medical Board/ Ossification report should be given preference over school leaving certificate or birth certificate, etc.

5. Before proceedings further it is important to refer to the opinion of the Medical Board which reads as under:-- "Board is of unanimous opinion that, taking into consideration all the above findings the age of Jaffar Ali son of Manzoor Ahmad, resident of Mohalla Nai Abadi, Sukheke is between 18-19 years on 29-4-2006."

6. According to the learned counsel for the petitioner and according to the above opinion, the petitioner was 17 years, 8 months and 21 days old on the day of occurrence which took place on 20-1-2006.

7. According to the learned Sessions Judge, at the time of occurrence, age of the petitioner was 18 years, 3 months and 20 days. The learned Sessions Judge in his order dated 21-4-2006, himself decided to refer the matter to the Medical Superintendent, D.H.Q. Hospital, Hafizabad to resolve the issue of age in the presence of conflict between the birth certificate and the school leaving certificate. However in the final order, the learned Sessions Judge observed that "considering the above facts and arguments, this Court has come to the conclusion that the birth certificate is an authentic document which is showing that Jaffar Ali was more than 18 years of age. Moreover, the medical report showed that the accused was 18/19 years of age at the time of examination and if calculated from the same, it confirms the age given in the birth certificate. Reliance can be placed on birth certificate coupled with medical report, thus, the contention of the learned defence counsel has no merits, his version to declare Jaffar Ali is hereby denied."

8. The learned Sessions Judge himself referred the matter to the Board as mentioned in his order dated 21-4-2006, therefore, it is not understandable why has he given preference to the birth certificate in the final order? The learned counsel for the respondent heavily relied upon Muhammad Ishaque v. Muhammad Nadeem (PLD 2002 SC 758). I have gone through the judgment myself. In my humble view this judgment is against the learned counsel for the respondent. The Hon'ble Supreme Court observed that in the presence of conflict and challenge to genuineness of two certificates, the Trial Court should have summoned the original record relating to the said two certificates. The Hon'ble Supreme Court further observed that in this kind of situation where a veracity of the certificate relied upon by an accused person had been seriously disputed, the normal course for the learned trial Judge should have been to have the accused medically examined by a competent Board to reach a just decision regarding his age. In the instant case, the learned .Sessions Judge directed to constitute the Medical Board to examine the petitioner in the presence of conflict between certificates abovementioned, yet did not rely the report. Similarly, the other cases referred to by the learned counsel for the respondent do not help him.

9. On the other hand, Umar Hayat v. Jehangir and another (2002 SCMR 629) is applicable in the facts of the present case A that where two views are possible, the view in favour of the accused is normally to be accepted. Similarly, Sana Ullah v. The State (2006 PCr.LJ 430) is also fully attracted, wherein, the report of the Medical Board was believed. In this regard, reference may also be made to Malik Sajjad Ahmad v. The State (2006 PCr.LJ 211), Sanaullah v. The State (2006 PCr.LJ 430) and Muhammad Rafiq v. The State (1987 PCr.LJ 1360).

10. In view of the above discussion, this criminal revision is accepted. Resultantly, order of the learned Sessions Judge, Hafizabad dated 9-6-2006, is set aside. It is further declared that the petitioner be treated as juvenile and to be tried under the Juvenile Justice System Ordinance, 2000. H.B.T./M-221/L Revision accepted.